TSM Regulation (2015/2120 of 25 November 2015)
- 1 What are the main objectives of the TSM Regulation?
The main objectives of the Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25 November 2015https://www.anacom.pt/render.jsp?contentId=1373317, laying down measures concerning the European single market for electronic communications and seeking creation of a connected continent are as follows:
- abolition of roaming charges within the European Union (EU) in June 2017, subject to a fair use policy;
- introduction of safeguard net neutrality standards within the EU;
- increased protection of consumers through measures which ensure that users are properly informed about their rights regarding roaming and net neutrality.
- 2 What is the open Internet in Europe?
The open Internet is a principle which ensures European citizens are able to access online content and services whenever they wish, without any discrimination or interference (such as blocking or slowing) by Internet access providers; this is subject, however, to a limited number of exceptions.
- 3 Why are rules needed for the open Internet in Europe?
The open Internet is critical for users and businesses, ensuring access to content and services available over the Internet. It is also essential for start-ups which sell their products and services over the Internet and which need to be able to compete with larger companies at the same level.
Until now, there have been no clear rules on this issue at European level, leaving the majority of Europeans without legal protection of their right of open Internet access.
Although some Member States already have national laws on the matter, the Digital Single Market does not support 28 different approaches. Therefore, the implementation of laws on the open Internet at European level will avoid further fragmentation in the regulation of the telecommunications sector in Europe.
- 4 What has been agreed in the context of the open Internet in Europe?
The Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25 November 2015https://www.anacom.pt/render.jsp?contentId=1373317, establishes the principle of open Internet within the European Union (EU), according to which operators must treat all traffic equally, providing their service through a high-quality open Internet.
Operators will therefore be prohibited from blocking or slowing down content, applications or services provided by their competitors. This prohibition is, however, subject to a limited number of exceptions. Accordingly, traffic management may exceptionally be employed:
- where deemed necessary to ensure compliance with national or European law on the legality of content under criminal law, or implementing measures under this legislation;
- where necessary to preserve network integrity and security;
- where necessary to mitigate the effects of exceptional or temporary network congestion; however, an operator whose network is continuously and repeatedly congested cannot rely on this exception, and is required to invest in increased network capacity.
Prioritisation of traffic in return for payment is likewise prohibited - access by end-users cannot be made subject to the will of Internet service providers or their commercial or private interests; and providers may not block or slow down traffic on their networks nor prioritize any specific service or content in exchange for payment.
The Regulationhttps://www.anacom.pt/render.jsp?contentId=1373317 also stipulates that Internet service providers inform consumers about network speed in their contracts. For fixed networks, this information must refer to minimum speed, to the speed generally available, to maximum speed and to advertised download and upload speed. In the case of mobile networks an estimate needs to be given of the maximum speed and advertised download and upload speed. Any significant and recurring difference between a service's actual performance and the download and upload speeds specified in the contract shall be held as being non-compliant with contracted performance for the purposes of the avenues of redress available to consumers.
With the new legal framework, in the event of any infringement of the open Internet provisions, Member States will be bound to apply sanctions which are effective, proportionate and dissuasive. Service providers will be subject to administrative and financial penalties.
- 5 How does the agreement on the open Internet in Europe ensure a balance between the interests of industry and consumers? What are the benefits for consumers?
The agreed rules establish the right of all Internet users (consumers and businesses) to access and distribute legal content, services and applications of their choice, thereby enabling effective network management by Internet service providers. As such, consumers will have no obstacles in their access to any online service or application.
The Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25 November 2015https://www.anacom.pt/render.jsp?contentId=1373317, also provides for the continued innovation of networks and services, as it defines the basic principles of relations between internet access services and specialist services - for example, Internet Protocol Television (IPTV) or telemedicine - with specific quality criteria. The rules ensure that the quality of open Internet access services will not be undermined by the provision of specialist services which share the same infrastructure.
The fact that all European citizens have access to the open Internet and all content, without discrimination or interference by internet service providers, enhances consumer choice and welfare while promoting competition.
The new legislation also increases transparency for consumers. As mentioned in the answer to the previous question, operators will be required to inform customers about the real Internet speed they can offer and what solutions are available where consumers fail to obtain this speed. Under the new Regulationhttps://www.anacom.pt/render.jsp?contentId=1373317, consumers are granted new contract termination rights in cases where the contracted speed does not match the speed actually available to the consumer.
- 6 What are specialist services in the context of the open Internet in Europe?
These services are different from open Internet access services but also use IP and the same access network, requiring a significant improvement in quality which cannot be guaranteed by the best-effort of the open Internet. Examples of these services include IPTV, healthcare (tele-surgery, etc.) and high-definition video conferencing services.
- 7 Could the open Internet in Europe lead to the existence of a two-speed Internet, with a "fast track" and a "slow track"?
No. The new regulations on the open internet ensure that the provision of specialist services which require a certain quality of transmission in order to function properly do not undermine the open Internet. Such services must therefore meet the following requirements:
- they must be optimised for specific content, applications and services;
- this optimisation has to be objectively necessary in order to meet the criteria of service for specified levels of quality that are not provided by the Internet access service;
- these services cannot be considered as substitutes for Internet access services;
- they can only be provided if the network has sufficient capacity (in addition to Internet access services);
- they must not undermine access to the Internet or quality of the Internet for end users;
It is not a matter of "fast track" or "slow track" but ensuring that every need is fulfilled.
- 8 What is zero rating in the context of open Internet in Europe?
Zero rating, or sponsored connectivity, is a business practice used by some internet service providers, especially mobile operators, in which data volume and specific applications are included in the user's monthly data limit. This promotes a wide offer range for the most price- sensitive users, encouraging them to use digital services.
Any agreements and business practices, including zero rating, which seek to subvert the rules of the Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25 November 2015https://www.anacom.pt/render.jsp?contentId=1373317 or which restrict the choice of end-consumers will be prohibited.
In this respect, it is for the regulatory authorities to monitor and ensure compliance.
- 9 What happens if an operator fails to comply with the open Internet rules? What can consumers do in such cases?
If operators fail to comply with the open Internet rules, financial and administrative penalties will be applied. These penalties are to be established by Member States, as set out in the Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25 November 2015https://www.anacom.pt/render.jsp?contentId=1373317. Member States shall notify these provisions to the European Commission by 30 April 2016, and any subsequent amendments thereto.
According to the current regulatory framework, consumers should exercise their right to complain to their national authorities. However, with the entry into force of the new Regulationhttps://www.anacom.pt/render.jsp?contentId=1373317, operators must also set up their own mechanisms to deal with consumer complaints about the rights and obligations of open Internet.
- 10 What role do national regulatory authorities (NRAs) have in the context of the open Internet in Europe?
NRAs are responsible for guaranteeing compliance with the provisions of the Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25 November 2015https://www.anacom.pt/render.jsp?contentId=1373317 as regards the measures of transparency which ensure access to the open Internet. This includes:
- monitoring and imposing open Internet rules;
- examining the traffic management practices of Internet service providers and the effect of commercial practices on the rights of end-users (consumers and businesses) in terms of access to and distribution of content, applications and services of their choice;
- ensuring that the quality of the open Internet access service reflects technological advances and is not degraded by traffic discrimination or by the provision of specialist or innovative services;
- setting minimum quality criteria for a service, making Internet service providers subject to these criteria, and setting out other measures as may be necessary to ensure that all end-users enjoy good quality open Internet access service.
NRAs are also required to publish annual reports on this oversight and its conclusions, and present them to the European Commission and the Body of European Regulators for Electronic Communications (BEREC).
- 11 What role does the Body of European Regulators for Electronic Communications (BEREC) have in the context of the open Internet in Europe?
After consulting stakeholders and in close cooperation with the European Commission BEREC shall establish guidelines, within nine months of the Regulationhttps://www.anacom.pt/render.jsp?contentId=1373317 entering into force, for the implementation of the obligations of national regulatory authorities (NRAs) as regards this area.
- 12 Does the European open Internet agreement comply with data protection and privacy legislation?
The agreement explicitly restricts processing of data to what is necessary and proportionate to achieve traffic management objectives. This processing must be performed in accordance with prevailing European data protection and privacy legislation.